Lindsay v. Lindsay

• Decision Date: 20 February 1913
• Citation: 100 N.E. 892,257 Ill. 328
• Parties: LINDSAY et al. v. LINDSAY et al.
• Court: Illinois Supreme Court

257 Ill. 328

100 N.E. 892

LINDSAY et al.

v.LINDSAY et al.

Supreme Court of Illinois.

Feb. 20, 1913.

Error to Circuit Court, Cook County; Merritt W. Pinckney, Judge.

Proceedings by Charles R. Lindsay, Jr., and others for the guardianship and care of William Lindsay, an alleged delinquent child. From a judgment in favor of petitioner, Elizabeth Lindsay and others bring error. Reversed.James R. Ward, of Chicago, for plaintiffs in error.

McEwen, Weissenbach, Shrimski & Meloan, of Chicago, for defendants in error.

FARMER, J.

This is a writ of error, and was sued out in the name of Elizabeth Lindsay, William Lindsay, and Otoman ZarAdusht Hanish to review a decree entered by a judge of the circuit court of Cook county, sitting in the branch known as the juvenile court. Defendants in error filed a plea denying the right of all of plaintiffs in error to the writ, and an issue of law was raised by a demurrer to said plea. At the last October term, an opinion was filed holding that Elizabeth Lindsay was not entitled to the writ or to join in the assignment of errors, but that the other two plaintiffs in error had a right to sue out the writ and have the decree reviewed. Lindsay v. Lindsay, 255 Ill. 442, 99 N. E. 608. Defendants in error have now joined in error and filed briefs on the merits of the case.

In the former opinion appears the following statement of the case: ‘On December 15, 1911, defendant in error Charles R. Lindsay, Jr., filed in the juvenile branch of the circuit court of Cook county a petition charging that William Lindsay, a male child under 17 years of age, was a dependent child, and did not have proper parental care; that his father was dead, and he was in the care of his mother, Elizabeth Lindsay, and Otoman Zar-Adusht Hanish; that his mother had neglected and failed to properly care for the said child; and that she was an improper guardian and wholly unable to care for, protect, train, and educate said child, by reason whereof he had became a dependent child. Summons was issued against the plaintiffs in error Elizabeth Lindsay and Hanish commanding them to appear before said court on the 4th day of January, 1912, and to have the said William Lindsay in open court. On the same day the petition was filed (December 15, 1911), the petitioner filed his affidavit stating that in his belief service of summons would be ineffectual to secure the presence of said child in court, and that he should be taken into custody forthwith, ‘as his immediate health and welfare are being jeopardized by his present care and custody.’ A warrant was issued; and under and by virtue of it the boy was taken by officers to the Detention Home, where he was placed in confinement, Upon assurance being given that he would be brought into court at the time set for hearing, the boy was released and turned over to his mother, and with her went to the home of a miss Brauchmann, where they were staying at the time, and remained there until the 27th or 28th of December, when they disappeared. On the day of the hearing (January 4, 1912) Hanish filed an answer to the petition, stating, under oath, that he never had control or custody of said child or power to produce him in court, and had no knowledge of the place where the child was, or in whose custody or control he might be. The court appointed an attorney to represent the child, and, in the absence of Mrs. Lindsay and child, proceeded to hear the testimony of witnesses upon the question whether or not the child was dependent or had proper parental care, and also as to the circumstances relating to the disappearance of Mrs. Lindsay and her boy. On January 24th the court entered a decree defaulting Mrs. Lindsay and William Lindsay, and finding that said William Lindsay was a neglected and dependent child, having no guardian of his person other than his mother, his natural guardian; that the father of said child died in Philadelphia in November, 1902, leaving an estate to his said son, from which an income, amounting to $1,200 or $1,500 per year, is paid to his mother, to be expended in his care, maintenance and education, by the Girard Trust Company of Philadelphia, guardian of the estate of said child; that Mrs. Lindsay was not a proper person to have the care and custody of said child; and that he does not receive proper parental care. The decree further found that Hanish was the head of a religious organization to promote the Mazdaznan religion; that the said religion purports to be the teaching of oriental philosophy and religion; that Mrs. Lindsay was a believer in said religion and its teachings, and recognized absolute spiritual and temporal power by Hanish over her religious beliefs, amounting to a religious fanaticism; that for a year last past she had been at divers places attending functions of said religion, had not kept the boy in school, and had permitted him to reside and travel with said Hanish at different places in and through the United States and Canada; and that Hanish was not a proper person to have control over said child. The court appointed the petitioner and Ellwood C. Lindsay, of Philadelphia, Pa., guardians of William Lindsay, and authorized them to take him into their care and custody wherever he may be found, and to present to the proper court of Philadelphia a showing regarding the conditions surrounding said child, when they shall have secured his custody, ‘and abide by the orders of said court as to such care and custody.’ The court adjudged Mrs. Lindsay in contempt of court for taking her child and leaving the jurisdiction of said court. To review this judgment, a writ of error has been sued out of this court by Hanish and Mrs. Lindsay, and William Lindsay, by his next friend.'

The residence of the child, William Lindsay, was with his mother, in Pennsylvania or New York. It is not clear in which of those states they resided; but it is not disputed that they were not residents of this state, but were in the state on a visit, or temporarily, when the proceeding was instituted in the juvenile branch of the circuit court.

Plaintiffs in error contend: (1) That the act known as the juvenile court act (Hurd's Rev. St. 1911, c. 23, §§ 169-190d) is in violation of the federal Constitution and the Constitution of this state; (2) that William Lindsay and his mother, being residents of another state, temporarily stopping in this state, were not subject to the jurisdiction of the court in a proceeding under the juvenile court act, and (3) that William Lindsay was not a dependent, neglected, or delinquent child, and his mother an unfit person to have custody and control of him. The principal grounds urged against the validity of the act are: (1) It creates a new court, termed the ‘juvenile court’; (2) it denies the constitutional right of trial by jury; (3) it reduces the child to a state of involuntary servitude in cases other than as a punishment for crime; and (4) it deprives children and the parents of children of liberty, property, and the right to the pursuit of happiness, without due process of law. Particular objections made to specific sections of the act are unnecessary to a decision of this case, and will therefore receive no discussion.

We entertain no doubt of the constitutional power of the Legislature to pass an act, of the character here involved, for the protection of dependent, neglected, or delinquent children. Acts in many respects similar, in principle, for the protection of delinquent, neglected, and dependent children have existed in some states for years; but acts like the one here being considered are of comparatively recent origin. This act was originally adopted in 1899, and is said by the editor of the eleventh and latest edition of Wharton's Criminal Law to be the first juvenile court act, as such acts are now generally known, adopted by any state. Similar acts have since been adopted by several other states, and have been uniformly sustained as valid legislation, except in the state of Michigan, where the acts held invalid were subject to objections not found in our statute. Our statute and those of a similar character treat children coming within their provisions as wards of the state to be protected, rather than as criminals to be punished, and their purpose is to save them from the possible effects of delinquency and neglect liable to result in their leading a criminal career. The purpose of such legislation is, we think, rightfully claimed to be unquestionably in advance of provious legislation dealing with children as criminals.

[1] Our statute does not, as contended, create a new court unauthorized by the Constitution. The decree which this writ of error is sued out to review was rendered by a judge of the circuit court of Cook county, designated by the other judges of said court, pursuant to authority conferred by the act, to hear causes arising under said act. The judge so sitting is a circuit judge, and the court in which the proceedings were held is a circuit court. The Legislature of Pennsylvania passed an act defining the powers of the several courts of quarter sessions of the peace with reference to the care, treatment, and control of dependent, neglected, incorrigible, and delinquent children under the age of 16 years. The validity of the act came before the Supreme Court of that state, and one of the objections urged to it was that it provided for an unconstitutional tribunal. The Supreme Court said the act did not create a new court; that the court of quarter sessions was a constitutional court; and the Legislature, recognizing it as an appropriate one upon which to confer jurisdiction in the care of neglected and unfortunate children recognized by the state as its wards, and requiring its protection, had the constitutional power to confer such jurisdiction upon that court. Commonwealth v. Fisher, 213 Pa. 48, 62 Atl. 198,5 Ann. Cas. 92. Our statute gives circuit and county courts concurrent...